Amicus Curiae Brief — Hannigan v. Stansbury

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Nos. 98-366 & 98-36

FILED

OCT 16 1996

IN THE SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

SUPREME COURT, U.S.

MARK L. STELTZLEN,

Respondent.

On Writs of Certiorari To The

Supreme Court Of The State Of Kansas

BRIEF AMICI CURIAE OF OHIO, ALABAMA, ALASKA,

ARIZONA, CALIFORNIA, COLORADO, DELAWARE,

FLORIDA, HAWAII, ILLINOIS, INDIANA, IOWA,

LOUISIANA, MARYLAND, MINNESOTA, MISSISSIPPI,

MISSOURI, MONTANA, NEBRASKA, NEVADA, NEW

HAMPSHIRE, NEW MEXICO, NEW YORK, NORTH

CAROLINA, NORTH DAKOTA, OKLAHOMA, OREGON,

RHODE ISLAND, SOUTH CAROLINA, SOUTH DAKOTA,

TENNESSEE, VERMONT, WEST VIRGINIA, WYOMING

AND THE COMMONWEALTHS OF MASSACHUSETTS

AND PENNSYLVANIA IN SUPPORT OF PETITIONERS

BETTY D. MONTGOMERY

Attorney General of Ohio

JEFFREY S. SUTTON

State Solicitor

Counsel of Record

TODD R. MARTI

JON C. WALDEN

MICHELE M. SCHOEPPE

Assistant Attorney General

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

(614) 466-8980

BILL PRYOR

Attorney General

State of Alabama

BRUCE M. BOTELHO

Attorney General

State of Alaska

GRANT WOODS

Attorney General

State of Arizona

DANIEL E. LUNGREN

Attorney General

State of California

GALE A. NORTON

Attorney General

State of Colorado

M. JANE BRADY

Attorney General

State of Delaware

ROBERT A. BUTTERWORTH

Attorney General

State of Florida

MARGERY S. BRONSTER

Attorney General

State of Hawaii

JAMES E. RYAN

Attorney General

State of Hlinois

JEFFREY D. MODISETT

Attorney General

State of Indiana

THOMAS J. MILLER

Attorney General —

State of lowa

RICHARD P. IEYOUB

Attorney General

State of Louisiana

J. JOSEPH CURRAN, JR.

Attorney General

State of Maryland

SCOTT HARSHBARGER

Attorney Geneal

Commonwealth of Massachusetts

HUBERT H. HUMPHREY III

Attorney General

State of Minnesota

i ag tins Hi

MICHAEL C. MOORE

Attorney General

State of Mississippi

JEREMIAH W. (JAY) NIXON

Attorney General

JOSEPH P. MAZUREK

Attorney General

State of Montana

DON STENBERG

Attorney General

State of Nebraska

FRANKIE SUE DEL PAPA

Attorney General

State of Nevada

PHILIP T. McLAUGHLIN

Attorney General

State of New Hampshire

TOM UDALL

Attorney General

State of New Mexico

DENNIS C. VACCO DARRELL V. McGRAW, JR.

Attorney General Attorney General

State of New York State of West Virginia

MICHAEL F. EASLEY WILLIAM U. HILL

Attorney General Attorney General

HEIDI HEITKAMP

Attorney General

State of North Dakota

W.A. DREW EDMONDSON

Attorney General

State of Oklahoma

HARDY MYERS

Attorney General

State of Oregon

MICHAEL FISHER

Attorney General

Commonwealth of Pennsylvania

JEFFREY B. PINE

Attorney General

State of Rhode Island

CHARLES M. CONDON

Attorney General

State of South Carolina

MARK BARNETT

Attorney General

State of South Dakota

JOHN KNOX WALKUP

Attorney General

State of Tennessee

WILLIAM H. SORRELL

Attorney General ~—

State of Vermont

LIST OF PARTIES

The 36 amici states support the Petitioners in two

related cases before this Court; McKune v. Steltzlen, Case No.

98-366 and Hannigan, et al v. Stansbury, et al, Case No.98-

367.

The Petitioners in McKune are:

David McKune

Charles Simmons

The Respondent in McKune is:

Mark Steltzlen

The Petitioners in Hannigan re:

Robert Hannigan

David McKune

William Cummings

Anthony McElroy

Jamie Lanza

Mr. Wilson

Mr. Taylor

Mr. Robinson

Mr. Stokes

Mr. Ron Hicks

The Kansas Department of Corrections

The Respondents in Hannigan are:

Raymond Stansbury

Michael Banks

et gO ats RGAE Eames IE EPA RNS . -

Page

RUMI Oe PAPE REED oe ie cece cece ii

STATEMENT OF AMICI INTEREST ............... l

REASONS FOR GRANTING THE WRIT ............ 2

I. The Court Should Grant The Writ To Resolve A

Growing Split Of Authority Regarding

Application Of The Ex Post Facto Clause To

Ministerial Prison Regulations ................ 3

Il. The Lower-Court Decision Implicates A Matter

Of Grave Importance To The States............ 5

a og I 9

Ee ae a 12

TABLE OF AUTHORITIES

Cases Page

Bailey v. Gardebring, 940 F.2d 1150

(8th Cir.), cert. denied (1991) ...........600.. 5

Bailey v. Noot,

PU I REED coc erccatuveecetacceces 5

California Dep't of Corrections v. Morales,

i bie Fle. rr er 3,11

Collins v. Youngblood,

sit & RRR esa Aree 10

Department of Revenue of Montana v. Kurth Ranch,

es EE, ik A gw 45 b OKs AKA 8 8 1]

Dominique v. Weld,

Fe AAPOR IOE Ge UDP) cv ceccccccccccusss 5

Francis v. Fox,

838 F.2d 1147 (11th Cir. 1988) ............... 5

Hudson v. United States,

ED 5 ic a vc hv sue S uss pevaacees 1]

Kansas v. Hendricks,

TS kk cha ca eka wae Nae 11

Lindsey v. Washington,

SPE REOGED ccc ccvcvccncedaacsates 10

Lynce v. Mathis,

EE A AUEDD a. vv os bein ce keeseeseaes 10

McGinnis v. Royster,

I EEEED vi v's 0.0: 0.505 do i004 ebewuhs 9

Miller v. Florida,

NONE ou b's a chs baN bbb 009 VA 10

Preiser v. Rodriguez,

ee UME i 0's 6 was 000s ban beds 6,9

Sandin v. Connor,

Dee Se UE ka ec ee cea ehn haan een 2

Turner v. Safley,

NE INT oo a ho cals sh as Ga edict cw hes 6

United States v. Ellen,

961 F.2d 462 (4th Cir.), cert. denied,

MRED oo osc eyed es cavess 5

Washington v. Harper,

ng IEE an a a 6

Weaver v. Graham,

TIRED eos Ci vo ob Cdvce taniain, 10

Constitutional and Statutory Provisions Page

Me II og 2g 054 56s SOKA Fecha eae 3

8 8 5 4d 058 bw KARE GN WE BR wae 3,4

Miscellaneous Page

A. Beck, Growth, Change and Stability in the

U.S. Prison Population, 1980-1995 ............ 8

Census of State and Federal Correctional Facilities,

Bureau of Justice Statistics Bulletin

RE Oe re 7

Corrections Management Quarterly,

EE 8

L. Greenfeld, A. Beck, and D. Gilliard;

Prisons: Population Trends and Key

Issues for Management, 21 Criminal

Justice Review 4 (1996) ..............000005. 7

C. Heard, Forecasting Models for a Changing Inmate

Population: Implications for Public Policy,

18 Criminal Justice Review 1 (Spring 1993) ...... 8

C. Hill, Population Projections, Corrections

Compendium, Vol. 23, No. 5 (May 1998) ....... 7

H.1.V. in Prisons and Jails,

Bureau of Justice Statistics (Aug. 1997)......... 7

C. Huff and M. Meyer, Managing Prison Gangs

and Other Security Threat Groups,

1(4) Corrections Management Quarterly

IR Se 67 oe 7

Inmate Privileges, Corrections Compendium,

WT, Os FC NOOD 6 oon d vtincees teen ces 9

Prisoners in 1997, Bureau of Justice Statistics

er 6,7

R. Wilkinson, The Future of Adult Corrections,

1(1) Corrections Management Quarterly

es ove wah A ca 7

STATEMENT OF AMICI INTEREST ~

The State of Ohio and 35 other amici States join

together in supporting the petitions for a writ of certiorari filed

by the State of Kansas. At issue among other things is whether

the ex post facto prohibition against retroactive punishments

bars prison administrators from requiring certain inmates to

participate in a remedial program -- here, a sexual abuse

treatment program -- as a condition for continuing to earn future

good-time credits. In holding that the clause prohibits States

from requiring inmates to participate in such programs, the

amici States respectfully submit that the lower court committed

a reversible -- and highly consequential error.

The issue matters to the amici States for several reasons.

First, the lower court’s expansive construction of the ex post

facto clause undermines one of the essential goals of prison

administration -- rehabilitation. Whether in the area of sexual-

abuse crimes or in other areas of criminology, an overriding

objective of corrections work is to equip convicts to make a

healthy, productive, safe and in the end permanent return to

society. An interpretation of the ex post facto clause that

prevents prison officials from fully using such treatment

programs for all of their inmates, however, threatens to

sidetrack if not affirmatively deter the achievement of each of

these goals.

Second, the interpretation of the ex post facto clause

embraced by the Kansas Supreme Court markedly contracts the

necessary administrative flexibility needed to run a State prison.

Prison officials with custody over an inmate serving a 20-year

sentence are bound to see a host of new medical and

sociological theories regarding prison administration over the

course of that inmate’s sentence. No doubt these developments

do not give prison wardens carte blanche to impose new

punishments during the course of the sentence. But surely these

developments allow administrators to institute progressive

treatment programs that account for these changes in

2

penological thinking. Again, so long as the primary thrust of the

new programs is remedial rather than punitive, the amici States

respectfully submit that these rehabilitation requirements are no

business of the ex post facto clause.

Third, many of the amici States have good-time credit

regulations similar to those of Kansas. Above all else, States use

good-time credits to measure eligibility for early release and

early consideration for parole. But, as with other remedial

tools, prison administrators need flexibility to adjust those

regulations to keep pace with new theories regarding

rehabilitation and with fresh concerns about the safety of

releasing an individual.

Even from the perspective of prisoners (also citizens of

the States), it is not clear that the analysis adopted by the

Kansas Supreme Court will in fact advance the liberty interests

of present and future inmates. Such rigid interpretations of the

ex post facto clause permit regulatory discretion only in the

direction of rules leading to an early release. Yet few prison

wardens or corrections officials will be willing to experiment

with progressive early-release programs under such a one-way

ratchet. At the end of the day, the lower-court decision thus

“discourages” the “desirable development” of enacting laws to

govern these issues and of developing new ways to rehabilitate

prisoners. Sandin v. Connor, 515 U.S. 472, 482 (1995). For

these reasons and those developed below, we submit this brief

amici curiae for the Court’s consideration.

REASONS FOR GRANTING THE WRIT

All three traditional reasons for granting the writ support

the Kansas petitions here. The lower-court decision deepens a

conflict of authority regarding the application of the ex post

facio clause to discretionary prison regulations. The decision

implicates essential federal questions affecting the prison-

sadehsp sigh Sumes Deva WEARS aC reat ine Sa ot! oes eB Aaa ie a Sa ei

3

administration interests of the sovereign States. And it fails

correctly to resolve these important issues.

I, The Court Should Grant The Writ To

Resolve A Growing Split Of Authority

Regarding Application Of The Ex Post Facto

Clause To Ministerial Prison Regulations.

By statute Kansas provides that “[g]ood time credits

shall be awarded on an earned basis pursuant to rules and

regulations adopted by the secretary of corrections.” K.S.A.

22-3725(d). In implementing the statute, the State has adopted

several different sets of administrative regulations. The most

recent one, and the one under attack here, requires inmates to

“participate in assigned programs” -- in this instance, a

rehabilitation program for those who have been convicted of

crimes -- in order to earn future good-time credits

towards parole eligibility or early release. K.A.R. 44-6-124(g)

(1993). No one disputes that a prior set of administrative

regulations did not require participation in-such remedial

programs as a condition of earning good-time credits.

One question that arises under these circumstances is

whether the ex post facto clause even applies to such inherently

changeable ministerial rules. In providing that “[n]o State shall

... pass any . . . ex post facto Law,” Art. I, sec. 10, the clause

prohibits only laws that “retroactively [1] alter the definition of

crimes or [2] increase the punishment for criminal acts.”

California Dep’t of Corrections v. Morales, 514 U.S. 499, 505

(1995). In construing the clause, the Court has never applied

the provision to procedural or remedial changes in the law.

Nor, to the amici’s knowledge, has the Court ever applied the

clause to administrative regulations, or for that matter even

suggested that the clause applies in this executive (as opposed

to legislative) setting.

The Court’s two-century silence on the application of

the clause to administrative regulations, in our considered

judgment, is not surprising. A prohibition against “ex post facto

laws” is a prohibition against legislative legerdemain. It does

not limit executive-branch decisions about when to prosecute,

when to investigate, when to plea bargain. And it does not limit

judicial-branch decisions about what the law means. So long as

the legislature does not retroactively change the definition of

crime or change the rules of punishment, it does not enact an ex

post facto law. For like reasons, so long as the ministerial

authority the legislature delegates to administrative agencies

comports with the bar against vague laws, with the limitations

of due process and with the prohibitions against double

jeopardy, its actions withstand constitutional scrutiny.

Moreover, when measured against the traditional ex post

facto yardsticks -- notice, reasonable expectations, fairness -- a

focus on the underlying enactments of the legislature in no way

diminishes the clause’s force. Consider again the pertinent

language of the Kansas law: “Good time credits shall be

awarded on an earned basis pursuant to rules and regulations

adopted by the secretary of corrections.” K.S.A. 22-3725(d).

Nothing Kansas did wavered from its steadfast position that

good-time credits would be earned. And no prisoner in light of

this statute had any tenable basis for assuming that the

administrative rules regarding how good-time credits were

earned would otherwise remain constant. Still less would a

prisoner serving a lengthy sentence have any such expectation.

Otherwise, why would the legislature delegate ministerial

authority to implement regulations? The very purpose of

allowing corrections officials (rather than the legislature) to set

this policy is because these kinds of issues lend themselves to

on-the-scene adjustments, which again are as apt to benefit

inmates as frustrate them. True, this delegation of agency

authority does not permit a regulation that itself imposes

punishment, a development that would either implicate double

5

jeopardy or due process. But so long as the regulations fit

within an appropriate delegation of ministerial authority, they do

not violate ex post facto.

Even if the amici States are wrong on this point (which,

we respectfully submit, they are not), that does not diminish the

force of the petition. Quite to the contrary: In view of the

Court’s silence on this issue, the lower courts have long

struggled to resolve it, with some courts adopting the position

embraced by the Kansas Supreme Court and others adopting the

position Kansas and the amici States have proposed. As Kansas

points out in its petitions, several federal courts of appeals have

held that administrative regulations do not violate ex post facto.

See, e.g., United States v. Ellen, 961 F.2d 462, 465-66 (4th

Cir.), cert. denied, 506 U.S. 875 (1992); Bailey v. Gardebring,

940 F.2d 1150, 1155-57 (8th Cir. 1991), cert. denied, Bailey v.

Noot, 503 U.S. 952 (1992); Francis v. Fox, 838 F.2d 1147,

1150 (11th Cir. 1988). Nor has this conflict of authority gone

unnoticed or (as this case confirms) been non-recurring. See,

e.g., Bailey v. Noot, 503 U.S. 952 (1992) (White, J., dissenting

from the denial of cert‘orari on the issue); Dominique v. Weld,

73 F.3d 1156, 1162 & n.10 (1st Cir. 1996).

In the end, the conflict of authority regarding the

application of the ex post facto clause to administrative

regulations supports the writ. On this basis alone, the writ

should be granted.

Il. The Lower-Court Decision Implicates A

Matter Of Grave Importance To The States.

As this Court has long recognized, prison management

represents a core sovereign function of the States. It “is difficult

to imagine an activity in which a State has a stronger interest, or

6

one that is more intricately bound up with state laws,

regulations, and procedures, than the administration of its

prisons.” Preiser v. Rodriguez, 411 U.S. 475, 491-492 (1973).

Recognizing the integral nature of prison management

to the States, the Court has been careful to reconcile the

constitutional rights of prisoners with the flexibility prison

administrators need to run their corrections systems. For this

reason, in all constitutional cases, not just First Amendment

cases, see Turner v. Safley, 482 U.S. 78 (1987) the Court has

adopted a lower standard of review regarding constitutional

claims by inmates. The decision to do so, the Court has

reminded litigants, is

based upon the need to reconcile our long-

standing adherence to the principle that inmates

’ retain at least some constitutional rights despite

' incarceration with the recognition that prison

authorities are best equipped to make difficult

decisions regarding prison administration. These

two principles apply in all cases in which a

prisoner asserts that a prison regulation violates

the Constitution, not just those in which the

prisoner invokes the First Amendment. We

made quite clear that the standard of review we

adopted in 7urner applies to all circumstances in

which the needs of prison administration

implicate constitutional rights.

Washington v. Harper, 494 U.S. 210, 223-224 (1990).

These considerations -- particularly the need to have

flexibility in rehabilitating and securing prisoners -- have

particular force here. Prison populations are expanding at

unprecedented rates, having increased by more than 111 percent

over the last six years. Prisoners in 1997, Bureau of Justice

7

Statistics Bulletin (Aug. 1998) at 4. Current statistics show that

approximately 1100 new inmates are added to the nation’s

prisons each week, enough to fill almost two average-size

prisons. /d. at 1, L. Greenfeld, A. Beck, and D. Gilliard:

Prisons: Population Trends and Key Issues for Management,

21 Criminal Justice Review 4, 5 (1996). State prisons not

surprisingly are operating at an average of 129% of capacity

with a recent survey revealing that 39 states consider their

overcrowding problems to be “serious,” “very serious,” or

“critical.” Prisoners in 1997, supra at 4; C. Hill, Popuiation

Projections, Corrections Compendium, Vol. 23, No. 5 (May

1998) at 15-17.

In addition to the growth in prison populations, States

have had to address rapid changes in the composition and

background of their inmates. There have been record increases

in the number of violent offenders and prisoners affiliated with

gangs, each presenting unique management challenges to

corrections officials. Prisoners in 1997, supra at 11 (noting that

violent offenders were responsible for 50% of the recent

increase in overall prison population.); A. Beck, supra at 6,

Table 7; C. Huff and M. Meyer, Managing Prison Gangs and

Other Security Threat Groups, 1(4) Corrections Management

Quarterly 10, 11 (1997). Growing numbers of prisoners, the

statistics show, tend to commit new offenses when given access

to supervised release. Greenfeld, Beck, and Gilliard, supra at

12; Beck, supra at 10-11. These trends are expected to

continue and intensify. R. Wilkinson, Zhe Future of Adult

Corrections, 1(1) Corrections Management Quarterly 57

(1997); A. Beck, supra at 13. In recent years, prison wardens

also have witnessed an unprecedented influx of female inmates

and HIV-positive inmates, each requiring system-wide changes

to prison management. H./.V. in Prisons and Jails, Bureau of

Justice Statistics (Aug. 1997); Census of State and Federal

Correctional Facilities, Bureau of Justice Statistics Bulletin

(Aug. 1997) at 1; Greenfeld, Beck, and Gilliard, supra at 18.

An increasing number of young inmates has created additional

pressures of their own. A. Beck, Growth, Change and Stability

in the U.S. Prison Population, 1980-1995, \(2) Corrections

Management Quarterly, 1, 4, 5, Table 5 (1997); C. Heard,

Forecasting Models for a Changing Inmate Population:

Impiications for Public Policy, 18 Criminal Justice Review 1,2

(Spring 1993).

In view of these rapid changes in prison populations and

in view of the penological challenges that come with them, it is

particularly important that prison officials have flexibility to

adjust their operating procedures to account for these

developments. Yet rather than account for these challenges to

prison management, the lower-court decision has exacerbated

them.

' At a specific level, the decision precludes frequently-

needed refinement of one of the tested incentives for good

behavior and rehabilitation -- good-time credits. Such

programs, it has been recognized, provide essential motivation

for good conduct and for prisoners to rehabilitate themselves in

preparation for release:

The actual allowance of ‘good time’ is

discretionary and is awarded as an incentive for

good conduct. It is a means for encouraging

participation in programs, efficient work and

discipline.

The state correctional system seeks to encourage

rehabilitation by work participation by inmates, job

training programs and education programs. An

inmate can be evaluated in his work and

participation in the facility’s programs and ‘good

time’ granted as an incentive.

|

9

McGinnis v. Royster, 410 U.S. 263, 273 n.20 (1973). The

decision below, however, prevenis inherently-necessary

modifications to good-time credits and thus interferes with an

aspect of penal administration that this Court has recognized is

best left to the discretion of corrections officials. See Preiser v.

Rodriguez, 411 U.S. 475, 491-492 (1973).

At a more general level, the lower-court decision could

have a potentially broader, more disruptive impact. Given the

Kansas Supreme Court’s emphasis on the “disadvantageous”

effect of new regulations, the decision could well ossify

operating procedures in other vital areas. In response to the

ever-shifting dynamics of prison management, 80% of the states

have altered their internal operating procedures since 1995 in

ways that are arguably “disadvantageous” to prisoners. /nmate

Privileges, Corrections Compendium, Vol. 23, No. 7 (July

1998) at 6. Those changes deal with such diverse matters as

health care administration, property and entertainment

privileges, smoking, occupational training and computer use,

and DNA testing for criminal investigatory purposes. /d. at 7-8.

In view of the arguably “disadvantageous” nature of those

changes, they all could well be endangered by the lower-court

decision. In each of these respects, the lower-court decision

affects matters of significant federal import. This factor, too,

independently supports the writ.

Ill, The Lower Court Erred.

Even aside from the conflict of authority heightened by the

lower-court decision and the importance of the issues presented,

the flaws in the decision by the Kansas Supreme Court by

themselves support the writ. One analytical flaw in particular

overrides all others -- the court’s mistaken assumption that a

sexual-abuse treatment program constitutes “punishment” under

the United States Constitution.

10

After properly acknowledging that the ex post facto clause

covers only “additional punishment” (Pet. 14a) (emphasis

added), see Collins v. Youngblood, 497 U.S. 37, 41 n.2 (1990)

(“the Court has consistently adhered to the view . . . that the Ex

Post Facto Clause applies only to penal statutes”), the Kansas

Supreme Court proceeded to characterize Kansas’s

rehabilitation program as punitive in nature. That is flatly

wrong.

To start with, no ex post facto decision from this Court

supports such a wide-ranging construction of punishment. All

of the relevant cases invalidating changes in State law plainly

contemplate new punitive measures. See, e.g., Lynce v. Mathis,

519 U.S. 433 (1997) (change in statute required reincarceration

of inmates that had been released); Miller v. Florida, 482 U.S.

423 (1987) (change in statute required longer prison sentence);

Weaver v. Graham, 450 U.S. 24 (1981) (change in statute

requiréd longer incarceration); Lindsey v. Washington, 301 U.S.

397 (1937) (change in statute required longer incarceration).

The sensible requirement that individuals convicted of sexual-

abuse crimes participate in treatment programs, whether in

existence at the time the crime was committed or not, simply

does not fall within the factual or legal parameters of these

cases. The reason is straightforward: The decision to require

inmates to participate in these new rehabilitation programs is

self-evidently remedial in nature. A contrary decision would

dramatically hamstring not just these progressive forms of

treatment but would have the perverse effect of limiting many

other similar programs as well. For example, if a prison may not

pass a regulation requiring convicted sex offenders to participate

in treatment programs, it is not clear that it could require

inmates who are high school dropouts to take vocational or

other educational courses. Surely the Constitution is not an

adversary of such well-meaning programs.

11

Recent precedent concerning the double jeopardy clause is

to the same effect. There, as here, State laws implicate the

provision only if they are punitive, as opposed to remedial, in

nature. See Hudson v. United States, 522 U.S. uy wae S. Ce.

488, 493-95 (1997). There, as here, a program designed to

treat, as opposed to incarcerate, a sexual offender does not

violate the Constitution. See Kansas v. Hendricks, 521 U.S.

346 (1997). And there, as here, “whether a sanction constitutes

punishment is not determined from the defendant’s perspective”

because otherwise virtually all government measures would be

deemed punitive. Department of Revenue of Montana v. Kurth

Ranch, 511 U.S. 767, 777 n.14 (1995).

Under the Kansas Supreme Court’s decision, however,

there are now two types of “punishment” under the United

States Constitution -- one for double jeopardy purposes and one

for ex post facto purposes. That cannot be the law. Surely the

same limitation on punishments carries the same meaning

throughout the individual-liberty guarantees of the Constitution.

Thus, as the Court already indicated in California Dept. of

Corrections v. Morales, 514 U.S. 499 (1995), the operative

question is not the inmate-centric view adopted by the Kansas

Supreme Court -- whether a change in law “disadvantages” the

inmate. It is whether the law “alters the definition of criminal

conduct or increases the penalty by which a crime is

punishable.” /d. at 506 n.3. And, as the Court’s holdings all

make clear, the ex post facto clause (like the Constitution’s

other limits on punishment) does not limit a State corrections

agency from imposing new remedial requirements on its inmates

-- SO long as they are neither punitive in design nor effect.

These considerations also support the writ. The Kansas

Supreme Court’s decision goes well beyond the punitive focus

of this Court’s ex post facto precedents and in the process

creates a schism in the definition of “punishment” for ex post

Jacto and for double jeopardy purposes. The Court should grant

12

review to correct this critical error and to prevent it from being

exported to other States.

CONCLUSION

For the foregoing reasons, the amici States respectfully

urge the Court to grant the writ.

Respectfully submitted,

BETTY D. MONTGOMERY

Attorney General of Ohio

JEFFREY S. SUTTON

State Solicitor

Counsel of Record

TODD R. MARTI

JON C. WALDEN

MICHELE M. SCHOEPPE

Assistant Attorneys General

30 E. Broad Street, 17th Floor

Columbus, Ohio 43215-3428

(614) 466-8980

Counsel for Amici States

October, 1998